Citation Nr: 22068614 Decision Date: 12/14/22 Archive Date: 12/14/22 DOCKET NO. 18-11 503 DATE: December 14, 2022 ORDER New and material evidence having been received, the claim of entitlement to service connection for obstructive sleep apnea is reopened. REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. FINDINGS OF FACT 1. In a final and unappealed May 2012 rating decision, the Regional Office (RO) denied service connection for obstructive sleep apnea. 2. The evidence received since the May 2012 rating decision, when presumed credible for purposes of reopening the claim, and considered in connection with evidence previously assembled, relates to unestablished facts and raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence sufficient to reopen the Veteran's claim of entitlement to service connection for obstructive sleep apnea has been received; the claim is reopened. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.156, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty service from July 1975 to July 1981, and from July 1986 to May 1996. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2017 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). It was previously before the Board in March 2020 when it was remanded for the RO to request the Veteran to identify each examiner whose curriculum vitae he would like. In March 2020, the RO complied with the Board's request and requested the Veteran to provide it with the name and VA facility location for each VA examiner involved in his claim. The Veteran did not provide the information. However, the Board finds, as explained below in the "Reasons for Remand" section, that upon further review of the record it was not necessary for the Veteran to provide this information in order for VA to fulfil its duty to assist. New and Material Evidence Generally, a claim that has been denied in an unappealed AOJ decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). However, if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence means evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). New and material evidence is not required as to each previously unproven element of a claim. There is a low threshold for reopening claims. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of determining whether new and material evidence has been submitted, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Whether new and material evidence has been received to reopen a claim of entitlement to service connection for obstructive sleep apnea In a final and unappealed May 2012 rating decision, the RO denied service connection for a sleep apnea. At the time of the May 2012 rating decision, the claims file included the Veteran's Service Treatment Records (STRs), which did not note sleep apnea, and included the Veteran's denial of "frequent trouble sleeping" in Reports of Medical History in 1975, 1977, 1978, 1985, 1986, 1987, 1992, and 1995. The claims file also included a post-service September 2006 Madigan AMC-Fort Lewis record noting that the was "no sleep apnea" and "no snoring". Private records in 2011, which were in the claims file, noted that the Veteran was "recently diagnosed with OSA [obstructive sleep apnea]" and a 2011 Sleep Center Note noted mild sleep apnea. It also included a May 2011 record (Sandpoint Family Medicine, Dr. M. Abrahams) in which it was noted "[the Veteran] states that the sleep apnea has likely been present for much longer than 20-30 years. He can remember during his time in the service that he would dream of drowning at night and have awakenings throughout the night feeling short of breath". Evidence received since the May 2012 rating decision Added to the claims file since the May 2012 final denial are additional clinical records, to include a May 2016 Kootenai Heart Clinics Northwest record that the Veteran was seen to establish care for chronic atrial fibrillation. It was noted that he has "had a longstanding history of sleep apnea. This sleep apnea is [sic] more than likely been a diagnosis that goes back at least 25-30 year, based on the report of his symptoms and his body weight." Given the low threshold espoused in Shade v. Shinseki, 24 Vet. App. 110 (2010), the Board finds that new and material evidence has been received; the claim is reopened. REASONS FOR REMAND In its April 2017 rating decision, the RO continued denial of the Veteran's claim, cited to an April 2017 VA Medical opinion, and noted that the VA examiner found it less likely as not that the Veteran's sleep apnea was due to service. The RO noted that the examiner cited to medical literature, the Veteran's clinical records noting his weight, provided a rationale that every 10 percent gain in body weight increased the risk of sleep apnea by six times, and that Veteran was approximately three times more likely to have obstructive sleep apnea in approximately 2010/2011 when diagnosed than when he separated from service based on his weight. The VA examiner also noted that private opinions were speculative and lacked review of pertinent clinical records (see April 2017 Disability Benefits Questionnaire (DBQ)). In his March 2018 VA Form 9 (substantive appeal), the Veteran requested the names, positions, and medical qualifications of those examiners involved with his claim. In its March 2020 remand, the Board directed the RO to obtain further information as to which examiner it was that the Veteran wanted further details. In March 2020, the RO requested the Veteran to provide it with the name and VA facility location for each VA examiner involved in his case. However, a review of the record shows that the Veteran was most likely requesting information regarding the April 2017 VA opinion as it was the only one obtained by VA with regard to his pending claim. As it was an opinion obtained by VA, the RO already had the name of the provider and the provider's facility. To comply with VA's duty to assist, the RO should have provided the Veteran with the curriculum vitae for the April 2017 DBQ provider. See Francway v. Wilkie, 940 F.3d 1304, 1309 (2019). The Board also notes that several clinical records cite to a February 24, 2010 Sleep Pro Sleep clinic record. The RO should request the Veteran to supply authorization for VA to obtain this record. Finally, the Board notes that the April 2017 VA examiner stated that the last weight that he could find after the 2010 sleep study was 242 lbs. on 3/28/2011. The Board notes that the clinical records show a weight of 240 lbs. on January 14, 2011, 247.8 lbs. on February 14, 2011, 248 lbs. on February 18, 2011, and 249 lbs. on March 1, 2011 (see Sandpoint Family Medicine). As the Board is remanding the matter for the examiner's curriculum vitae to be provided to the Veteran, the examiner should be given another opportunity to review these weights and affirm or change his opinion if necessary. The matter is REMANDED for the following action: 1. Provide to the Veteran the curriculum vitae of the VA examiner who authored the April 2017 DBQ on sleep apnea. Associate all information provided with the electronic claims file. 2. Request the Veteran to complete and submit to VA a signed authorization (VA Form 21-4142) for it to obtain all 2010 sleep study records, to include a February 24, 2010 Sleep Pro Sleep clinic record. If he complies, make two requests for all authorized records unless it is clear after the first request that a second request would be future. 3. Thereafter, request an addendum from the April 2017 DBQ provider, or another if he is not reasonably available, to review the claims file and provide an addendum. Specifically, the examiner is asked to clarify whether the Veteran's obstructive sleep apnea, at least as likely as not, had its onset in service. In doing so, the examiner is asked to : i) Consider the additional body weights noted in the claims file after the 2010 sleep study and prior to the March 28, 2011 weight which he noted in the April 2017 DBQ. (See 240 lbs. on January 14, 2011, 247.8 lbs. on February 14, 2011, 248 lbs. on February 18, 2011, and 249 lbs. on March 1, 2011 noted in Sandpoint Family Medicine records); ii) Address both the likely onset of the Veteran's OSA and the May 2016 opinion authored by Kootenai Heart Clinics Northwest ("more than likely been a diagnosis that goes back at least 25-30 years"), which the Board notes falls within his second tour of duty. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Wishard The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.